Citation Nr: 0124606
Decision Date: 10/12/01 Archive Date: 10/18/01
DOCKET NO. 00-24 928 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for asbestosis.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. J. Alibrando, Counsel
INTRODUCTION
The veteran served on active duty from January 1951 to
October 1952.
This case came to the Board of Veterans' Appeals (Board) on
appeal from an April 2000 rating decision of the Department
of Veterans Affairs (VA) Montgomery, Alabama, Regional Office
(RO).
In June 2001, the veteran testified at a videoconference
hearing before the undersigned member of the Board.
REMAND
At the outset, it is noted that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000); 66 Fed. Reg. 45620 (August 29, 2001) (to be
codified as amended at 38 C.F.R. § 3.102, 3.156(a), 3.159,
3.326(a)) (VCAA). It essentially eliminates the requirement
that a claimant submit evidence of a well-grounded claim, and
provides that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. The provisions of these regulations apply to any
claim for benefits received by the VA on or after November 9,
2000, as well as to any claim filed before that date but not
decided by the VA as of that date, with the exception of that
the amendments to 38 C.F.R. § 3.156 relating to the
definition of new and material evidence and to 38 C.F.R.
§ 3.159 pertaining to VA assistance in the case of claims to
reopen previously denied final claims, which apply to any
claim to reopen a finally decided claim received on or after
August 29, 2001. See 66 Fed. Reg. 45620 (August 29, 2001);
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).
Because of the change in the law brought about by the VCAA, a
remand in this case is required for compliance with the
notice and duty to assist provisions contained in the new
law. In addition, because the RO has not yet considered
whether any additional notification or development action is
required under the VCAA, it would be potentially prejudicial
to the appellant if the Board were to proceed to issue a
decision at this time. See Bernard v. Brown, 4 Vet. App. 384
(1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992)
(published at 57 Fed. Reg. 49,747 (1992)). Therefore, for
these reasons, a remand is required.
In an effort to assist the RO, the Board has reviewed the
claims file and identified certain assistance that must be
rendered to comply with the VCAA. However, it is the RO's
responsibility to ensure that all appropriate development is
undertaken in this case.
The veteran testified in June 2001 that he currently has
asbestosis due to exposure to asbestos while working as a
telephone line installer during active duty at Camp Rucker.
He indicated that the initial diagnosis of asbestosis was
made during outpatient treatment at the Birmingham VA Medical
Center in 1998.
The record shows that the veteran's service medical records
were not available, presumably destroyed in a fire at the
National Personnel Records Center in 1973.
38 C.F.R. § 3.159(c) (2) provides that the VA will make as
many requests as are necessary to obtain relevant records, to
include service medical records. It is provided that the VA
will end its efforts to obtain records from a Federal
department or agency only if it is concluded that the records
sought do not exist or that further efforts to obtain those
records would be futile.
In the Statement of the Case, the RO noted that the service
medical records were not found and indicated that the claim
could be reconsidered if they were located. In light of the
new provisions of 38 C.F.R. § 3.159, the RO should make
further attempts to obtain both the veteran's service medical
records and service personnel records in compliance with the
VCAA.
As noted above, the veteran has indicated that he received
outpatient treatment at the Birmingham VA Medical Center
regarding the claimed asbestosis since 1998. The claims file
contains copies of radiology reports dating back to April
1998 and outpatient treatment records dated from February
1999 to September 2000. It appears, however, that the
complete records of VA treatment have not been obtained.
While the veteran has indicated that he was seen in 1998 and
given a diagnosis of asbestosis, those records are not in the
file. The VA records do show diagnoses of chronic
obstructive pulmonary disease and asbestosis in September
2000 and a February 1999 report of a CT scan of the chest
noted that asbestos related pleural disease persists.
A VA examination was conducted in February 1999. The veteran
reported that the thought that he was exposed to asbestos at
Fort Rucker in 1952. The diagnoses included questionable
asbestosis.
The duty to assist requires VA to make "reasonable efforts to
obtain relevant records (including private records)" and to
provide a medical examination when such examination is
necessary to make a decision on the claim. 38 C.F.R.
§ 3.159.
VA has recognized that a clinical diagnosis of asbestosis
requires a history of exposure and radiographic evidence of
parenchymal disease. Department of Veterans Affairs,
Veteran's Benefits Administration, Manual M21-1, Part 6,
Chapter 7, Subchapter IV, § 7.21 b.
The Board finds that the VA examination is inadequate for
purposes of adjudicating the veteran's claim. The RO should
obtain all medical records pertaining to the veteran's claim,
particularly all VA outpatient records pertaining to the
veteran from 1998 to the present. Thereafter, the RO should
afforded the veteran a VA examination for the purpose of
determining the etiology of any currently found asbestosis.
Accordingly, the case is REMANDED for the following
development:
1. The RO should take appropriate steps
in order to contact the veteran and to
obtain the names and addresses of all
health care providers who have treated
him for the claimed asbestosis since
service. Thereafter, the RO should
obtain legible copies of all records from
any identified treatment source, to
include all records of VA treatment, not
currently of record. In particular, the
RO should obtain all VA outpatient
reports not of record pertaining to the
veteran from the Birmingham VA Medical
Center from 1998 to the present. Once
obtained, all records must be associated
with the claims folder.
2. The RO should contact the National
Personnel Records Center and any other
appropriate service department and
request the veteran's service medical
records and service personnel records.
All records obtained must be associated
with the claims file.
3. The RO should ensure that its efforts
to obtain the requested records in
Paragraph Nos. 1 and 2 above, are fully
documented in the claims folder. If such
records do not exist or if further
efforts to obtain those records would be
futile, the RO should so indicate in the
claims folder. If any identified
evidence is not available, the RO should
notify the appellant as mandated by the
VCAA.
4. The RO then should schedule the
veteran for a VA examination to determine
the current nature and the likely
etiology of the claimed asbestosis. All
indicated tests must be conducted. The
claims folder must be made available to
and reviewed by the examiner prior to the
requested study. The examiner should
elicit from the veteran and record a
complete history of his in-service and
any post-service (occupational) asbestos
exposure. Based on his/her review of the
case, the examiner should provide an
opinion as to whether it is at least as
likely as not that the veteran has
current pulmonary disability due to
asbestos exposure which was incurred in
or aggravated by service. A complete
rationale for any opinion expressed must
be provided. The examination report
should be associated with the claims
folder.
5. The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 1991 &
Supp. 2001) are fully complied with and
satisfied.
6. Following completion of the above,
the RO review the veteran's claim. If
the claim remain denied, a supplemental
statement of the case should be issued to
the appellant and his representative and
they should be given an opportunity to
respond.
Thereafter, the case should be returned to the Board for
further appellate review, if in order. The veteran needs to
take no action until he is informed.
The purpose of this remand is to further develop the record
and to afford the veteran due process of law. The Board
intimates no opinion, either legal or factual, as to the
ultimate disposition warranted in this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
M. W. GREENSTREET
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).